Louisville & N. R. Co. v. Voss

• Decision Date: 14 February 1903
• Citation: 72 S.W. 983
• Parties: LOUISVILLE & N. R. CO. v. VOSS.
• Court: Tennessee Supreme Court

72 S.W. 983

LOUISVILLE & N. R. CO. v. VOSS.

Supreme Court of Tennessee.

February 14, 1903.

Error to Circuit Court, Lawrence county; Sam Holding, Judge.

Action by A. R. Voss against the Louisville & Nashville Railroad Company. Judgment

for plaintiff, and defendant brings error. Affirmed.

Geo. T. Hughes and W. R. King, for plaintiff in error. Hamilton Parks and J. D. Burch, for defendant in error.

SHIELDS, J.

This is an action for personal injuries, brought by the defendant in error against the plaintiff in error in the circuit court of Lawrence county, resulting, on a trial, in a verdict and judgment against the plaintiff in error, which it has brought before this court for review.

When the case was called for trial in the circuit court, the plaintiff in error moved the court for a continuance on account of the absence of three witnesses, and in support of its motion presented a special affidavit, stating the names of the absent witnesses, the facts which plaintiff in error expected to prove by them, and all other facts necessary to constitute an affidavit showing good grounds for a continuance. The plaintiff below, conceding that the affidavit stated a good cause for a continuance, proposed to agree that the absent witnesses would testify as stated, and that the affidavit be read in evidence in behalf of the plaintiff in error on the trial of the case as the depositions of those witnesses, and thereupon the court refused the continuance, and required the plaintiff in error to go to trial. This action of the court is now assigned as error, the contention of the plaintiff in error being that it was entitled to have its witnesses before the court and jury in person, and that nothing short of a direct and absolute admission of the truth of the facts which it claimed its witnesses would testify to would authorize the court to deny it this right, and disallow its application for a continuance of the case. This contention is sound, and the action of the court in requiring plaintiff in error to go to trial upon the agreement of the plaintiff below that the witnesses would swear as stated in the affidavit, and that the affidavit be read as their depositions, was, nothing else appearing, reversible error. The plaintiff in error had the right to have its witnesses before the court, and nothing short of an absolute and unqualified admission of the truth of the facts proposed to be proven by the absent witnesses, by the opposite party, justified the court in refusing the continuance and requiring the plaintiff in error to go to trial.

This court, in a case involving this question, commenting on the case of Rhea v. State, 10 Yerg. 257, holding that the defendant in a state case had the right to have his witnesses present, notwithstanding an offer upon the part of the state to admit as true what was proposed to be proven by the absent witnesses, said: "While we think this statement perhaps goes too far, when it is assumed that the agreement...